UK: Employment Law Cases 2017: What Can We Expect?

What are the topics of most interest in 2017? Inevitably, there
is some cross-over with legislative developments – most
notably regarding the gig economy and new ways of working –
but here we present some broad themes likely to be developed by the
courts in the coming year.

Employment status

Last Autumn, the London Central Employment Tribunal held that
Uber was a taxi company, not a technology platform as it claimed,
and found that its drivers had legal rights including the right to
paid holiday and the minimum wage (and we wrote about the
implications of the decision
here). Shortly afterwards, Uber announced that they were to
appeal to the Employment Appeal Tribunal and that appeal is
expected this year.

Earlier this month, a different employment judge at the same
employment tribunal found that a cycle courier was a worker for
CitySprint, and three more cases being brought by couriers (against
Excel, Addison Lee and eCourier) will be heard by the same
employment judge this year. Other companies including Deliveroo and
Hermes (the delivery company, not the luxury goods maker) are also
facing action from individuals providing services to them, claiming
that they too are workers.

While employment tribunals' decisions do not bind other
tribunals, those of higher courts do. This month, the Court of
Appeal heard another case (involving nominally self-employed
individuals who work for Pimlico Plumbers) and the result of that
case is likely to affect the outcome of other claims.

Equal pay

Brierley and others v Asda Stores Ltd (employment
tribunal)

In what has been described as the largest ever equal pay claim
against a private-sector employer, more than 9,500 Asda shop floor
workers (who are predominantly female) are seeking to compare their
jobs with those of (predominantly male) colleagues in Asda's
distribution centres. In October 2016, the Manchester tribunal
agreed that the shop floor staff could compare themselves to
distribution workers and now the tribunal must determine whether
there is a pay difference and, if so, whether the difference is due
to genuine material factors or not. If successful, it has been
estimated that Asda could be facing claims for compensation dating
back to 2002 and totalling £100m.

As well as other claims stayed pending the decision, Sainsbury
is also facing a claim from around 400 workers on similar grounds.
You can read more about the case and how it could affect other
claims
here.

Whistleblowing

Chesterton Global (t/a Chestertons) v Nurmohamed (Court of
Appeal))

Since June 2013, a whistleblower is only protected if he or she
reasonably believes that the disclosure made is "in the public
interest". This change was intended to prevent cases such as
that of Parkins v Sodexho (2002), where Mr Parkins was
found to have made a protected disclosure when he complained of
breaches of his own employment contract.

In
Chesterton, a manager at a large firm of estate agents raised
concerns about the operation of a commission scheme which affected
around 100 other employees. The EAT decided that this was "in
the public interest", a decision followed in
Underwood v Wincanton (2015) – a case which affected only
four employees. The Court of Appeal is expected to decide in June
whether or not the EAT's liberal interpretation in
Chesterton of the meaning of this phrase is correct.

Employment tribunal fees

R (on the application of Unison) v Lord Chancellor and
another (Supreme Court)

Since July 2013, it costs an individual £250 to bring many
types of employment claim (including unfair dismissal and
discrimination) with a further £950 if it goes to a hearing.
It is also clear from government statistics that the number of
claims brought has dropped substantially since the introduction of
fees.

The trade union Unison made an unsuccessful challenge to the new
fees structure. This was also rejected by the Court of Appeal in
August 2015, which said that Unison's arguments (that the fee
prevented rights derived from EU law, such as discrimination, being
effectively enforced, and that the fees for complex cases such as
discrimination indirectly discriminated against those with
protected characteristics more likely to pursue a discrimination
claim) and that there was insufficient evidence before the Court of
any individual claimant's inability to afford the fees. The
judgment did however add that the decline in claims since the
introduction of fees was "sufficiently startling to merit a
very full and careful analysis of its causes; and if there are good
grounds for concluding that part of it is accounted for by
claimants being realistically unable to afford to bring
proceedings, the level of fees and/or the remission criteria will
need to be revisited". The Ministry of Justice launched a
review of the effect of fees in June 2015 (a year later than
originally promised) but no report has been published.

The Supreme Court was due to hear Unison's appeal in
December 2016 but this was postponed to make way for Miller v
Secretary of State for Exiting the EU (the "Article 50
case"). Instead, the Supreme Court will hear the appeal on 27
and 28 March 2017.

Holiday pay

No date has yet been set for the Supreme Court hearing in
Lock, although British Gas have appealed October
2016's
Court of Appeal judgment. This confirms, together with other
cases, that the Working Time Regulations 1998 can and should be
interpreted to include commission (and other regular payments such
as acting-up payments, compulsory overtime and shift allowances) in
the calculation of holiday pay. Although not yet considered by a
higher court, tribunals have found that voluntary overtime should
also be included.

Mr Lock's case is one of 60 against British Gas in the East
Midlands region, and 918 in the UK, to say nothing of "many
thousands" (in the EAT's words) of similar claims against
other respondents, all of which are stayed at present.

British Gas is expected to appeal to the Supreme Court, given
that it has 1,000 similar claims from its workers waiting in the
wings. The Court of Appeal declined to answer what was the
appropriate reference period for calculating the commission aspect
of holiday pay and it is hoped that the Supreme Court will address
this to clarify the law for both employers and workers.

In addition, the Court of Appeal referred questions to the
European Court of Justice (ECJ) in April last year in Sash
Window Workshop Ltd, a case which asked whether workers are
entitled to carry forward, from one year to the next, holiday that
they have been unable to take for reasons beyond their control.

Religious discrimination

Last year, the ECJ heard two religious discrimination cases,
both concerning female Muslim employees who had been told not to
wear headscarves. Before the judges make a decision, it is usual
practice in the ECJ that an Advocate General considers the case and
writes an Opinion (which may or may not be followed). In
Bougnaoui, the Advocate General considered that an
employer cannot have a blanket ban on religious dress simply
because of a desire for neutrality or because a client or customer
objects; in Achbita, another Advocate General suggested
that the aim of religious and political neutrality could be
sufficient to prevent a Muslim employee from covering her head.

The two ECJ judgments, expected to be delivered in 2017, will
decide which approach is correct.

Indirect discrimination

These two indirect race discrimination claims were heard
together in the Supreme Court in November 2016 and judgment is
awaited.

In Essop, the Court of Appeal held that it is necessary
in indirect discrimination claims for the claimant to show why the
provision, criterion or practice has disadvantaged both a group
with a protected characteristic, and the individual claimant. In
Naeem, the Court of Appeal held that the existence of a
non-discriminatory reason for Muslim prison chaplains being paid
less than their Christian counterparts (length of service –
since the Prison Service only started to employ Muslim chaplains in
2002) defeated an indirect discrimination claim.

While the arguments are technical, the outcome is important.
Employment lawyers hope that the judgments will set out clearly how
tribunals should be approaching indirect discrimination claims and
what tests must be met for claims to succeed.

Trade unions

In our so-called "Winter of Discontent", with a number
of unions calling strikes and others calling for recognition by
employers unused to this form of industrial relations, unions are
an area of topical interest. The Court of Appeal is to give
judgments in two interesting cases. In Boots, concerning a
non-independent, so-called "sweetheart" union, it
considers the statutory union recognition scheme and in Jet2.com, the question is what
an employer forced to collectively bargain with a union must
negotiate, and when it is permissible to go to the employees
directly with proposals before beginning the process.

Collective redundancies

R v Forsey (Chesterfield Magistrates Court)

Finally, 2016 has continued to be a bumpy year for
SportsDirect's employer brand. Next month, the criminal
prosecution of a former director will return to Chesterfield
Magistrates Court, where he is accused of failing to file Form HR1
(official notification of the intent to make more than 20
redundancies) in time when the company's subsidiary, USC, went
into administration.

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guide to the subject matter. Specialist advice should be sought
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